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  • Writer's pictureRobert Spicer

More recent employment cases

RACE DISCRIMINATION Harassment Stale training Case Allay (UK) Ltd v Gehlen UKEAT/0031/20/AT Facts G, a man of Indian origin, was employed by A in October 2016. In August 2017 he told his line manager that he was suffering regular racial abuse from a workmate. The manager told G to report this to human resources. In September 2017 he was dismissed for poor performance and complained of racial harassment. A carried out an investigation. This concluded that G had been racially abused and the workmate underwent equality training. G complained of racial harassment to an ET. A argued that it had taken all reasonable steps to prevent the workmate from racially harassing G by virtue of having provided him with relevant training. The ET found that the training had been given two years before the harassment took place and was clearly stale. The employer had not taken all reasonable steps to avoid discrimination in the workplace. The training clearly needed to be refreshed. A appealed to the EAT. Decision 1. The appeal was dismissed. 2. The ET should first ascertain what steps the employer had taken to prevent harassment and whether there were any other reasonable and effective steps which they should have taken. 3. The question of reasonableness should include an analysis of the extent to which the steps were effective. In G’s case, it was clear that they had not been. RACE DISCRIMINATION Resettlement scheme for Syrian refugees Case R (Turani and another) v Secretary of State for the Home Department (2021) The Times, April 13, Court of Appeal Facts The UK Resettlement Scheme for vulnerable persons made resettlement in the UK available to refugees who were most in need of resettlement under criteria set by UNHCR. This prevented the claimants, who were Palestinian refugees from Syria, from being considered for resettlement, because they were deemed by UNHCR to be receiving assistance from UNRWA, another UN agency. The claimants, Palestinian refuges who had fled Syria and were in Lebanon, challenged the home secretary’s decision to rely exclusively on UNHCR and argued that the scheme discriminated against them. At first instance the court found that the claim was outside the territorial scope of the Equality Act and any discrimination was justified. The claimants appealed to the Court of Appeal. Decision 1. The appeal was dismissed. 2. The scheme was not unlawful. There were good and clear reasons for working with UNHCR as the referral agency. UNCHR was uniquely trusted to perform functions which would otherwise have fallen on government, including the collection of bio-data and carrying out checks and assessments including the identification of former combatants and those guilty of war crimes. SEX DISCRIMINATION Victimisation Case Chalmers v Airpoint Ltd UKEATS/0031/19/SS Facts Ms C was employed by A. There were a total of 15 employees of whom two were female. Ms C alleged that she had been discriminated against when |A organised a Christmas party which neither female could attend. She lodged a grievance with her line manager complaining about this and other matters from which she felt excluded. The grievance was not upheld. Ms C complained to the ET of sex discrimination and victimisation on the basis that the grievance was a protected act for the purposes of the Equality Act 2010 because it alleged that she had been discriminated against on grounds of sex. The ET dismissed the claim on the ground that Ms C’s grievance had not asserted sex discrimination. She appealed to the EAT. Decision 1. The appeal was dismissed. 2. Ms C’s failure to assert sex discrimination in the grievance undermined her submission that the grievance was an explicit allegation of it. 3. The claim of victimisation could not succeed because the ET had found that there had not been a protected act. It was not enough to complain of victimisation on the basis of a grievance which did not refer to a breach of the Act of 2010. UNFAIR DISMISSAL TUPE Fundamental breach Case Lewis v Dow Silicones UK Ltd UKEAT/0155/20/LA Facts L was employed by DS. DS outsourced its employees to another company. The employees were then insourced. This was a TUPE transfer. L resigned and complained of unfair constructive dismissal on the basis that DS had acted in fundamental breach of his contract of employment and/or a breach of TUPE, regulation 4 (9). The ET rejected the complaint on the basis that there had been no dismissal. L appealed to the EAT, arguing that the decision of the ET had been perverse. A properly directed ET should have found that there had been a fundamental breach and that the TUPE transfer involved substantial changes to his detriment. Decision 1. The appeal was allowed in part. 2. On the evidence, there had been no fundamental breach of the contract of employment. 3. In relation to regulation 4(9) of TUPE, the decision of the ET had been based on false reasoning and its decision had been perverse. 4. L had been entitled to treat his contract as terminated and he was to be treated as having been dismissed by DS. 5. L’s complaint of unfair dismissal based on TUPE was remitted to the same ET for determination. WHISTLEBLOWING Protected disclosures Public interest Case Dobbie v Felton t/a Feltons Solicitors UKEAT/0130/20/00 Facts F engaged D as a consultant. He claimed that he had been subjected to detriments because he had made three protected disclosures related to the overcharging of a client, and that his consultancy agreement had been terminated as a result. The ET found that D did not have a reasonable belief that the disclosures were in the public interest. D appealed to the EAT. Decision 1. The appeal was allowed. 2. The ET had been wrong in its analysis of whether D reasonably believed that he had made the disclosures in the public interest. 3. The ET’s decision that the disclosures had little influence was not the same as having had no material effect on the decision. 4. The disclosure of overcharging in a solicitor’s firm could give rise to a contractual dispute between solicitor and client but also regulatory issues, for example regulations being there to protect the public. 5. The matter was remitted to a fresh ET.


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